This Communication sets out a certain number of avenues that the Commission has noted with the aim of improving the quality of services in maritime ports.

ACT

Communication from the Commission to the Council and to the European Parliament of 13 February 2001: Reinforcing Quality Services in Sea Ports: a Key for European Transport [COMM(2001) 35 - Not published in the Official Journal].

Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996 on Community guidelines for the development of the Trans-European Transport Network (TEN-T) provides a broad framework for establishing an integral and multimodal infrastructure network. Sea ports obviously play an important role within such a network.

This is why the Commission has proposed, as far as sea ports in particular are concerned, internal navigation ports and intermodal terminals, the identification of, inter alia, some 300 seaports, using objective criteria, for inclusion in the outline plans and sought to improve the definition of relevant projects of common interest relating to sea ports.

2 Market Access to Port Services

"Port services" are services of a commercial nature that are provided, for payment, to port users. The price of these services is usually not included in the charges collected for being allowed to call at or operate in a port. Although the degree to which the market is open varies from one Member State to the next, and even between the ports of that same Member State, all Member States have opted for the progressive opening up of this sector to competition.

However, restricted market access for the provision of certain port services is justifiable for the following reasons: some ports can only offer limited space, tasks must be carried out under Community customs procedures, and they have a specific responsibility for maritime as well as on-shore safety and environmental protection.

The proposal for a Directive on market access to port services aims to establish more comprehensive rules regarding market access to port services through competition, in ports with international traffic, whilst taking on-shore safety and environmental protection requirements into consideration, public service obligations, and the diversity of the ports in question. This legislation is designed to provide a framework for the national measures which help to eliminate existing restrictions in the port services market whilst respecting the national, or indeed local, particularities, on grounds of subsidiarity.

3 Public financing and seaports

A key issue, from the competition point of view, is the division of the financial flows between the public authorities, the port operators and the users of port services.

Whilst in the past, the construction of ports and port services were expected to be paid for by the tax payer, a discernible trend has developed towards greater private participation in their financing. At the same time, more and more port management bodies are striving to develop a more active commercial role. In fact, some ports are operating on an entirely commercial basis.

Report on the public financing and charging practices in the Community Sea Port Sectors ("inventory")

The Commission has, with the active support of the Member States, gathered information in the form of an inventory on the public financing and charging practices in the Community sea port sector. The following conclusions should be kept in mind:

90% of the Community's maritime trade is estimated to be handled in ports where investments and other policy and managerial decisions e.g. charging, are dependent on or at least influenced by public bodies;

Public investment in ports represents between 5 and 10% of total Community investments in the transport infrastructure;

Public financing operations are not sufficiently transparent;

Charging and cost recovery systems vary greatly;

The port services market is developing and the possibilities of gaining access to it are increasing, although the procedural rules which should ensure fair and open selection procedures are unclear and unsatisfactory.

Transparency

The inventory shows that three accounting systems are used in port management. Analysis of these three systems shows that none are likely to provide clear and transparent information on public money flows in ports or on the use of funds by the port management body.

The consultations following the publication of the Green Paper have highlighted the faults of a system that hinders the Commission's ability to satisfactorily control, where warranted, state aid rules and generally risks impeding competition at a time when Member States and port authorities introduce more and more private initiative, competition and capital into ports.

As a result, the Commission believes that the implementation of Directive 2000/52/EC of the Commission of 26 July 2000 modifying Directive 80/723/EEC on the transparency of financial relations between the Member States and public undertakings (the "Directive on transparency"), combined with a legal requirement to keep separate accounts to be introduced as part of the proposed "Directive on market access to port services" will lead to considerable improvements.

State Aid to ports

The Commission has been requested to issue guidelines on port state aid for the construction of port infrastructures, as it has done in other sectors, but notably due to the lack of case law on this subject, the Commission prefers to carry out case-by-case examinations where the facts and specificities of each case alone determine the outcome.

According to Article 87 (1), the selection criteria for aid is the only benchmark for determining whether an investment measure constitutes as State aid or not, no matter whether it is categorised as financing for port infrastructure, superstructure, mobile asset or operational service.

Public (general)' infrastructure is open to all users on a non-discriminatory basis and the Commission regards investments in this type of infrastructure as general measures, provided that they are open to all users, be they actual or potential.

As regards "user specific" infrastructures, in general, if public authorities prepare land in their possession for development and sell or lease it at market rates, the Commission does not regard such investments in infrastructure as state aid.

Investments in superstructures can include all types of buildings (warehouses, workshops, offices) and all types of fixed or semi-mobile equipment, they often favour certain undertakings and thus constitute as aid, except for the exemptions provided for in the Treaty.

Public support to investments in mobile assets and operational services, e.g. those of individual port service providers, generally favours certain undertakings and thus constitutes as State aid, apart from the exemptions provided for in the Treaty.

RELATED ACTS

Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (Text with EEA relevance);

Communication from the Commission to the European Parliament and the Council - Reinforcing Quality Service in Sea Ports: A Key for European Transport [COM(2001) 35 final - Not published in the Official Journal].

Green Paper on sea ports and maritime infrastructure [COM(97) 678 final - Not published in the Official Journal].